The
Freedom of Information Act
(
FOIA), as amended, represents the implementation
of freedom of information
legislation in
the United States. It was signed into law by President
Lyndon B. Johnson on September 6, 1966 (Public Law
89-554, 80 Stat. 383; Amended 1996, 2002, 2007), and went into
effect the following year. This act allows for the full or partial
disclosure of previously unreleased information and documents
controlled by the
United States
Government. The Act defines agency records subject to
disclosure, outlines mandatory disclosure procedures and grants
nine exemptions to the statute.
The law was ratified in 1966, coincidentally 200 years after what is believed to be the first Freedom of Information Legislation, Sweden's Freedom of the Press Act, in 1766.
Background
With the ongoing stress on both constitutional and inherent rights
of American citizens and the added assertion of government
subservience to the individual, some thought it was necessary for
government information to be available to the public.
However, the sensitivity of some government information and private
interests clash with this view. Therefore, Congress attempted to
enact a Freedom of Information Act in 1966 that would effectively
deal with requests for government records, consistent with the
belief that the people have the “right to know” about them. The
Privacy Act of 1974 additionally
covered government documents charting individuals.
However, it is in the exemptions to solicitation of information
under these acts that problems and discrepancies arise. The nine
exemptions to the FOIA address issues of sensitivity and personal
rights. They are (as listed in
Title 5 of the United States
Code, section 552):
- (A) specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order;
- related solely to the internal personnel rules and practices of
an agency;
- specifically exempted from disclosure by statute (other than
section 552b of this title), provided that such statute (A)
requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or (B) establishes
particular criteria for withholding or refers to particular types
of matters to be withheld;
- trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
- inter-agency or intra-agency memoranda or letters which would
not be available by law to a party other than an agency in
litigation with the agency;
- personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
- records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information (A) could reasonably be expected to
interfere with enforcement proceedings, (B) would deprive a person
of a right to a fair trial or an impartial adjudication, (C) could
reasonably be expected to constitute an unwarranted invasion of
personal privacy, (D) could reasonably be expected to disclose the
identity of a confidential source, including a State, local, or
foreign agency or authority or any private institution which
furnished information on a confidential basis, and, in the case of
a record or information compiled by a criminal law enforcement
authority in the course of a criminal investigation or by an agency
conducting a lawful national security intelligence investigation,
information furnished by a confidential source, (E) would disclose
techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably
be expected to risk circumvention of the law, or (F) could
reasonably be expected to endanger the life or physical safety of
any individual;
- contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial
institutions; or
- geological and geophysical information and data, including
maps, concerning wells.
Scope
The act explicitly applies only to federal government agencies.
These agencies are under several mandates to comply with public
solicitation of information. Along with making public and
accessible all bureaucratic and technical procedures for applying
for documents from that agency, agencies are also subject to
penalties for hindering the process of a petition for information.
If “agency personnel acted arbitrarily or capriciously with respect
to the withholding, [a] Special Counsel shall promptly initiate a
proceeding to determine whether disciplinary action is warranted
against the officer or employee who was primarily responsible for
the withholding.” In this way, there is recourse for one seeking
information to go to a Federal court if suspicion of illegal
tampering or delayed sending of records exists. However, there are
nine exemptions, ranging from a withholding “specifically
authorized under criteria established by an Executive order to be
kept secret in the interest of national defense or foreign policy”
and “trade secrets” to “clearly unwarranted invasion of personal
privacy.”
The Privacy Act Amendments of 1974
Following the
Watergate scandal,
President
Gerald R. Ford wanted to sign Freedom of Information
Act-strengthening amendments in the
Privacy Act of 1974, but concern (by his
chief of staff
Donald Rumsfeld and
deputy
Richard Cheney) about leaks
and legal arguments that the bill was unconstitutional (by
government lawyer
Antonin Scalia,
among others) persuaded Ford to veto the bill, according to
documents declassified in 2004.However, Congress voted to override
Ford's veto, giving the United States the core Freedom of
Information Act still in effect today, with judicial review of
executive secrecy claims.
These amendments to the FOIA regulate government control of
documents which concern a citizen. It gives one “(1) the right to
see records about [one]self, subject to the Privacy Act's
exemptions, (2) the right to amend that record if it is inaccurate,
irrelevant, untimely, or incomplete, and (3) the right to sue the
government for violations of the statute including permitting
others to see [one’s] records unless specifically permitted by the
Act.” In conjunction with the FOIA, the PA is used to further the
rights of an individual gaining access to information held by the
government. The Justice Department's Office of Information and
Privacy and federal district courts are the two channels of appeal
available to seekers of information.
The 1976 Government in the Sunshine Act amendments to the
FOIA
In 1976, as part of the
Government in the Sunshine
Act, Exemption 3 of the FOIA was amended so that several
exemptions were specified:
1) information relating to national defense, 2) related solely to
internal personnel rules and practices, 3) related to accusing a
person of a crime, 4) related to information where disclosure would
constitute a breach of privacy, 5) related to investigatory records
where the information would harm the proceedings, 6) related to
information which would lead to financial speculation or endanger
the stability of any financial institution, and 7) related to the
agency's participation in legal proceedings.
The 1986 Omnibus Anti-Drug Abuse Act amendments to the
FOIA
The FOIA amendments were a small part of the bipartisan Anti-Drug
Abuse Act of 1986. Congress amended FOIA to address the fees
charged by different categories of requesters and the scope of
access to law enforcement and national security records. The
amendments are not referenced in the congressional reports on the
Act, so the floor statements provide an indication of Congressional
intent.
President Reagan's Executive Order limiting the FOIA
Between 1982 and 1995, President Reagan's
Executive Order 12,356 of 1982 allowed federal
agencies to withhold enormous amounts of information under
Exemption 1 (relating to national security information). The outcry
from the effect that the Reagan Order had on FOIA requests was a
factor in leading President Clinton to dramatically alter the
criteria in 1995.
Expansion of the FOIA during the Clinton Administration
Between 1995 and 1999, President Clinton issued executive
directives (and amendments to the directives) that allowed the
release of previously classified national security documents more
than 25 years old and of historical interest, as part of the FOIA.
This release of information allowed many previously publicly
unknown details about the
Cold War and
other historical events to be discussed openly.
The Electronic Freedom of Information Act Amendments of
1996
The Electronic Freedom of Information Act Amendments of 1996
(E-FOIA) stated that all agencies are required by statute to make
certain types of records, created by the agency on or after
November 1, 1996, available electronically. Agencies must also
provide electronic reading rooms for citizens to use to have access
to records. Given the large volume of records and limited
resources, the amendment also extended the agencies' required
response time to FOIA requests. Formerly, the response time was ten
days and the amendment extended it to twenty days.
[63158]
President Bush's Executive Order limiting the FOIA
Executive Order 13233, drafted
by
Alberto R. Gonzales and issued by President
George W. Bush on November 1, 2001, shortly after the
September 11, 2001
attacks, restricted access to the records of former
Presidents.
President Obama's Executive Order encouraging open
government
On January 21, 2009, President
Barack
Obama issued Executive Order 13489 that encourages openness,
transparency and accountability in government records. This does
not change the
Presidential
Records Act. It did, however, revoke Executive Order 13233 of
November 1, 2001.
The Intelligence Authorization Act of 2002 amending the
FOIA
In 2002, Congress passed the Intelligence Authorization Act for
Fiscal Year 2003, Public Law 107-306. Within this
omnibus legislation were amendments to the FOIA
(pertaining mainly to intelligence agencies) entitled "Prohibition
on Compliance with Requests for Information Submitted by Foreign
Governments":
Section 552(a)(3) of title 5, United States Code, is amended:(1) in
subparagraph (A) by inserting "and except as provided in
subparagraph (E)," after "of this subsection,"; and(2) by adding at
the end the following:"(E) An agency, or part of an agency, that is
an element of the intelligence community (as that term is defined
in section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4))) shall not make any record available under this paragraph
to--"(i) any government entity, other than a State, territory,
commonwealth, or district of the United States, or any subdivision
thereof; or"(ii) a representative of a government entity described
in clause (i).".
In effect, this new language precluded any covered US intelligence
agency from disclosing records in response to FOIA requests made by
foreign governments or international governmental organizations. By
its terms, it prohibits disclosure in response to requests made by
such other-than-U.S. governmental entities either directly or
through a "representative." This means that for any FOIA request
that by its nature appears as if it might have been made by or on
behalf of a non-U.S. governmental entity, a covered agency may
inquire into the particular circumstances of the requester in order
to properly implement this new FOIA provision.
The agencies affected by this amendment are those that are part of,
or contain "an element of," the "intelligence community." As
defined in the National Security Act of 1947 (as amended), they
consist of the Central Intelligence Agency, the National Security
Agency, the Defense Intelligence Agency, the National Imagery and
Mapping Agency, the National Reconnaissance Office (and certain
other reconnaissance offices within the Department of Defense), the
intelligence elements of the Army, the Navy, the Air Force, and the
Marine Corps, the Federal Bureau of Investigation, the Department
of the Treasury, the Department of Energy, and the Coast Guard, the
Department of Homeland Security, the Bureau of Intelligence and
Research in the Department of State, and "such other elements of
any other department or agency as may be designated by the
President, or designated jointly by the Director of Central
Intelligence and the head of the department or agency concerned, as
an element of the intelligence community."
President Bush signs "OPEN Government Act of 2007" - December
31, 2007
establishing a definition of "a representative of the
news media;" (2) directing that required attorney fees be paid from
an agency's own appropriation rather than from the Judgment Fund;
(3) prohibiting an agency from assessing certain fees if it fails
to comply with FOIA deadlines; and (4) establishing an Office of
Government Information Services in the National Archives and
Records Administration to review agency compliance with
FOIA.
The law recognizes electronic media specifically and defines "News
Media" as "any person or entity that gathers information of
potential interest to a segment of the public, uses its editorial
skills to turn the raw materials into a distinct work, and
distributes that work to an audience."
The law extends the 20 day deadline by allowing for up to 10 days
between the FOIA office of the agency and the component of the
agency holding the records and specifically allows for
clarification of requests by the FOIA office (Effective
12/31/2007).
And call for each agency to designate a FOIA Public Liaison, "who
shall assist in the resolution of any disputes" (Effective
12/31/2008).
Requires agencies to assign tracking numbers to FOIA requests that
take longer than 10 days, and to provide systems determining the
status of a request.
Modifies and defines annual reporting requirements for each
agencies FOIA program.
Specifically addresses data sources used to generate reports;
"shall make the raw statistical data used in its reports available
electronically..."
Redefines the definition of an agency "record" to include
information held for an agency by a government contractor.
The newly established Office of Government Information Services
will offer mediation services to resolve disputes as non-exclusive
alternative to litigation.
Requires agencies to make recommendations personnel matters related
to FOIA such as whether FOIA performance should be used as a merit
factor.
Requires agencies to specify the specific exemption for each
deletion(redaction) in disclosed documents.
Notable cases
A major issue in released documentation is government "redaction"
of certain passages deemed applicable to the Exemption section of
the FOIA.
Federal Bureau of Investigation
(FBI) officers in charge of responding to FOIA
requests "so heavily redacted the released records as to preclude
needed research." This has also brought into question just
how one can verify that they have been given complete records in
response to a request.
J. Edgar Hoover
This trend of unwillingness to release records was especially
evident in the process of making public the FBI files on
J. Edgar
Hoover. Of the 164 files and about eighteen thousand pages
collected by the FBI, two-thirds were withheld from
Athan G. Theoharis and plaintiff, most notably one
entire folder entitled the "White House Security Survey". Despite
finding out that the Truman Library had an accessible file which
documented all the reports of this folder, the FBI and Office of
Information and Privacy it put forth "stony resistance" to the FOIA
appeal process. (I–pg. 27) Some argue that it was not even this
sixteen year series of three appeals to the Justice Department
which gained a further opening of the files, but rather the case of
U.S. Department of Justice v. Landano
which spurred on a break in stolid FBI opposition.
Murder trial
A murder trial decided in the year of 1993,
U.S. Department of Justice
v. Landano, involved
what was alleged to be a felony murder committed during a group
burglary by defendant Landano. Justice
Sandra Day O'Connor wrote the unanimous
opinion. "In an effort to support his claim in subsequent state
court proceedings that the prosecution violated
Brady v. Maryland, 373 U.S. 83, by withholding
material exculpatory evidence, he filed Freedom of Information Act
(FOIA) requests with the FBI for information it had compiled in
connection with the murder investigation."In defense, the FBI put
forth a claim that the redacted sections of the documents requested
were withheld in accordance with FOIA regulations protecting the
identity of informants who gave information regarding case details.
However, O'Connor ruled that those who supplied information had no
need to remain anonymous in the court setting. "To the extent that
the Government's proof may compromise legitimate interests, the
Government still can attempt to meet its burden with in camera
affidavits." The court thus remanded the case to the Circuit Courts
and rejected the FBI's claim of confidentiality as being a valid
reason to withhold information.
"While most individual sources may expect confidentiality, the
Government offers no explanation, other than administrative ease,
why that expectation always should be presumed." Thus, when
Theoharis and company were in the middle of fighting in court to
obtain J. Edgar Hoover files, they may well have benefited from
Landano and also Janet Reno's assertions of the
government's need for "greater openness" and "discretionary
releases" in 1993.
E-mail
In the case of
Scott Armstrong et al. v. Executive Office
of the President et al., the White House
used the PROFS computer
communications software. With encryption designed for secure
messaging, PROFS notes concerning the
Iran-Contra affair (arms-for-hostages)
under the
Reagan Administration were
insulated. However, they were also backed up and transferred to
paper memos. The National Security Council, on the eve of President
George H.W. Bush's inauguration, planned to destroy
these records.
The National Security Archive,
Armstrong's association for the preservation of government
historical documents, obtained an injunction in Federal District
Court against the head, John Fawcett, of the National Archives and Records
Administration
and the National Security Council's purging of
PROFS records. A Temporary Restraining Order was approved by
Senior U.S. District Court Judge Barrington D. Parker. Suit was
filed at District Court under Judge Richey, who upheld the
injunction of PROFS records. [ – pgs. 151-152]
Richey gave a further injunction to prevent a purging of the G.H.W.
Bush administration records as well. On counts of leaving the White
House clean for the new
Clinton
Administration, the Bush group appealed but was denied its request.
Finally, the Clinton Administration appealed to the
U.S. Court of Appeals, stating that the
National Security Council was not truly an agency but a group of
aides to the President and thus not subject to FOIA regulations.
Under the Presidential Records Act, "FOIA requests for NSC [could]
not be filed until five years after the president ha[d] left
office… or twelve years if the records [were] classified." [ – pg.
156] The
Clinton administration won, and the National Security Archive was
not granted a writ of certiorari
by the Supreme Court
on these grounds. According to Scott
Armstrong, taking into account labor and material costs, the three
presidential administrations spent almost $9.3 million on
contesting the National Security Archive FOIA requests for PROFS
e-mail records. ( - pg. 159)
Barbara Schwarz
Records at
the United States Department of
Justice
(DOJ) show Barbara Schwarz, a citizen of Germany
, has made
more requests under the FOIA than any other person since it became
law in 1966. For more than ten years Schwarz has made
repeated requests with many federal departments and agencies for
public records the government says don't exist.
Schwarz
believes, and her requests are aimed to prove, that rather than
having been born in Germany her actual birth was around 1956 inside
a secret government submarine base called Chattanooga under the
Great Salt
Lake
. She further believes herself to be daughter
of
Church of Scientology
founder
L. Ron Hubbard.
Further saying that she was then
kidnapped, taken to Germany, and given a
false identity including a German birth certificate which was
doctored to conceal her actual birth in Utah.
Working
from her Salt Lake
City
, Utah
home or a
nearby library at least one of Schwarz's lawsuits has been
considered by a U.S. District or U.S. Circuit Court of
Appeals somewhere in the nation every year since 1993 and has filed
unsuccessful appeals to the U.S. Supreme Court. One of her
complaints to the U.S. District Court in Washington, D.C., set a
record for voluminous litigation at 2,370 pages, naming 3,087
defendants, all of whom were employed as FOIA or "Privacy Act"
officers in the federal government claiming their denials to be
part of a conspiracy to keep the truth from her. U.S. District
Court Judge John Bates said the FOIA's "admirable purpose is abused
when misguided individuals are allowed (in this case repeatedly) to
submit requests to every agency and subdivision of the government,
seeking information about an imaginary conspiracy," in a ruling
against her.
Schwarz has filed
pro se litigation in the
hopes of forcing these agencies to do more detailed searches and to
waive the costs, claiming poverty, so far without success. The
Justice Department has advised federal employees charged with
responding to FOIA requests that until Schwarz satisfies
outstanding search and copying fees incurred by previous filings,
future requests may legally be denied.
See also
References
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